CA Trust, Estate & Probate Litigation

CA Trust, Estate & Probate Litigation

Broken Promises: Are Oral Promises to Make a California Trust or Will Enforceable?

Posted in Beneficiary, Litigation, Probate, Probate Court Litigation, Trust Creation, Trustees & Beneficiaries, Will Creation, Wills

Is an oral promise to make a will or trust enforceable under California law? Contrary to what many believe, California law provides for the enforcement of oral promises to make a will or trust.

How does the promise to make a will or trust arise? Generally, a parent orally promises a child, a friend, or a caretaker some or all of their assets once they die, if the child, friend, or caretaker agrees to do something for the parent. The “something” can be anything of value, but usually takes the form of the child, friend, or caretaker taking care of the parent until the parent’s death.

But what if the parent didn’t get around to writing a will or trust that states the child, friend, or caretaker gets some or all of the parent’s assets after they die? Or what if the parent never intended to write a will or trust reflecting the promise to the child, friend, or caretaker? Can the child, friend, or caretaker enforce the now deceased parent’s oral promise to give them assets? The answer is ‘yes’.

California Probate Code section 21700, entitled “Contract to make will” has a provision that allows a person to establish an oral promise by establishing that there was an agreement between the parent and the child, friend, or caretaker that the parent would leave some or all of their assets to the child, friend, or caretaker after they died.

But this is where it gets a bit tricky. The procedural hoops one must jump through to make a an initial claim to enforce an oral promise to make a trust or will under California requires the following:

  • First, one has to pay attention to the applicable statute of limitations. The statute of limitations simply tells us how long we have to file a lawsuit to enforce an oral promise. The applicable statute of limitations for filing a lawsuit to enforce an oral promise to make a will or trust is one year from the date of death of the parent. So if the parent dies on January 1, 2014, then the child, friend, or caregiver would have one year (to December 31, 2014) to file an actual lawsuit to enforce the claim.
  • Second, it gets even trickier. Before one can file a lawsuit based on a broken promise to make a will or trust, one must file a “creditor’s claim” in the estate of the deceased parent. The creditor’s claim is not difficult to complete and file, but if one fails to complete this step, and one year passes from the date of death of the parent, one is very likely barred forever from filing an actual lawsuit to enforce the parent’s promise.
  • Third, it’s still tricky. What if nobody has opened the deceased parent’s estate with the probate court? Can one simply wait until an estate is opened, whether that’s one or two years from now, and then file their creditor’s claim? The answer is very likely ‘no’. The applicable statute of limitations states that to enforce an oral promise to make a will or trust, a lawsuit must be filed within one year of the date of death of the parent. So if the probate estate is not opened, then one needs to file a petition for probate to open the parent’s estate with the probate court, file a creditor’s claim, and then file a lawsuit—all before the one year passes from the parent’s date of death.

Each of these steps must be completed before one can have their day in court to prove a claim based on an oral promise to make a California will or trust. If the one-year statute of limitations (calculated from the deceased parent’s date of death) is blown for any reason, the claim to enforce the oral promise is barred forever from being heard. Thus, it’s very important for one to understand and meet the procedural loopholes required to make a claim to enforce an oral promise.

What’s the Difference? Revocable Trusts vs. Irrevocable Trusts in California

Posted in Videos

These silly little legal terms tend to cause way more confusion that is necessary.  Why can’t we just call them changeable Trusts and unchangeable Trusts?  That’s be way too easy to understand.  Better yet, let’s call them by their official legal names: Inter-Vivos Revocable Trusts and InterVivo-s (or sometimes Testamentary) Irrevocable Trusts.  That should clear things up….  Well, maybe not.  Let’s just explain it in this video, take a look and see what you think.

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Casey Kasem’s Missing Body…Who has the right to control your body after death?

Posted in Abuse & Fraud

Casey Kasem died June 15th, and now his daughter claims that Mr. Kasem’s body is missing (as reported by Jane Caffrey with CNN).  Kasem’s daughters and his wife (Jean Kasem) were engaged in a contentious battle over control of Kasem prior to his death.  Now that Kasem has passed, Jean Kasem has moved Kasem’s body from the mortuary where it was kept without telling his daughters.  So the fight continues on even with who makes funeral arrangements and how the body is ultimately laid to rest

Seems ridiculous, but it happens more often than you may think.  So who has the ultimate control over a person’s body after death?  That can be a tricky question to answer.

Let’s start with California’s Health and Safety code that provides what is supposed to be an orderly way to determine who has control of a decedent’s remains after death.  Under Health and Safety Code Section 7100, the following people, in this order, have the power to control the disposition of remains:

1.  An agent given that power under a Health Care Directive.

2.  The surviving spouse, if competent to make decisions.

3.  The decedent’s child, or a majority of children if the decedent had more than one child.  However, a group of children smaller than the majority can act if they cannot get in contact with the other children.

4.  And then parents, siblings of the decadent, and next of kin, in that order.

The problem comes from a disagreement either between the surviving spouse and the agent under the Health Care Directive, or between multiple children.  I have seen both and it always is an ugly fight.

In Kasem’s case, he had a surviving spouse, but she is not the mother of Kasem’s children, which is a natural breeding ground for conflict in many cases.  Add to that a Health Care Directive that named Kasem’s daughter as agent.  That’s enough to pit spouse against daughter in this mess.  And in some cases there can even be a competing Health Care Directive signed shortly before death that further complicates the problem.

The result: a contentious fight between family members attempting to control the remains and disposition of the decedent’s body.  Who wins and who loses?  That’s up for the Court to decide.   What started as a fight during Kasem’s lifetime now will be a drawn out Court affair lasting long after he is gone.  So much for resting in peace.

A Fight from Start to Finish: How a California Trust can go from bad to worse…and then to Court

Posted in Trustee Breach of Trust, Trustee Removal, Trusts

There’s Trusts that run smoothly, there’s Trusts that have a few problems, and then there’s Trust where everything is a fight from start to finish.  Which Trust sounds most like yours?

  1. Smooth Sailing.  This is the way Trusts are supposed to work.  The successor Trustee takes over management of the Trust, the assets are collected and inventoried, assets are sold as needed, bills are paid, beneficiaries receive their fair share, and the Trusteereports his actions with an accounting.  If there is a continuing Trust for a beneficiary, then the assets are properly invested using a financial planner and an investor policy statement to be sure investments are appropriate.  And the Trust administration is complete, without Court intervention.
  2. Houston we have a problem.  The troubled trust administration is where a Trust has a few problems along the way, but nothing serious enough to force anyone into Court.  Maybe the Trustee needs a gentle reminder on what to do.  Maybe a beneficiary is being unreasonable, or a piece of Trust property is particularly hard to sell.  Whatever the problem, a few arguments back and forth, some slight corrections, and the Trust administration is back on track.  All’s well that ends well.
  3. All-out Warfare.  This is where a Trust administration goes completely off-the-rails.  A bad Trustee who refuses to follow the Trust terms, refuses to communicate and refuses to make mandated Trust distributions. Or Trust investments that are not planned out and are not appropriate for the Trust, or a Trustee who fails to account.  Any one of these scenarios can end up with the whole mess in Court, for a judge to decide.

Notice something about the last approach?  All the examples involve Trustee misconduct because the Trustee is the ONLY person who owes duties to the beneficiaries.  The beneficiaries, in turn, owe no duties to the Trustee.

Unfortunately, even though the Trustee’s duties are well outlined in the California Probate Code, when a Trustee fails or refuses to follow the rules, only a Court can make them behave.  There is no action a beneficiary can take, besides making demands, to force a Trustee’s hand other than seeking a Court order.  Once in Court, the judge can issue an order and force the Trustee to act.  Or the judge can remove the trustee, personally fine the Trustee, or any number of other actions to force compliance with the California Probate Code.

If you find yourself a beneficiary of Trust scenario number 3, you had better be prepared to fight for your rights.

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The Hand Beyond the Grave: The Trick to Transferring Assets Into a Trust After Death

Posted in Videos

Usually, if an asset is not held in the name of a Trust, then the Trust cannot control it.  But in some instances, assets can be transferred into a Trust, and thereby avoid probate, after death.  This is a huge time–and money–saver for everyone involved.

For our email subscribers, please click on the title link to view the video on our website.

The Claim Trap: One Year Limitation on Making Claims Against a Decedent

Posted in Videos

So someone owes you money or promises to leave you part of their estate in exchange for your promise to take care of them…but then they don’t.  Well you have a claim against a decedent, but that claim must be acted on quickly.  The outside deadline is one year from the date of death, if you fail to act by this time you are FOREVER barred in asserting your claim.  And by “forever” I mean forget about the money you are owed for good.

For our email subscribers, please click on the title link to view this video on our website.

Is Donald Sterling Crazy, or is Shelly Sterling Crazy Like a Fox? How a little known California Trust provision could save or sink a $2 billion deal

Posted in Lack of Capacity, Trust Administration, Trustee Removal, Uncategorized

One of the biggest benefits of creating a revocable, living Trust is that it allows your successor Trustee to manage your affairs if you lose capacity.  Sounds good, but who decides when your capacity is kaput?

That will be the question for the Court to decide on Monday, July 7th when a Los Angeles County Superior Court judge will decide if Shelly Sterling has the right to act as sole Trustee.

Mr. Sterling’s problem comes from the family Trust he and his wife created to hold their interests in the Los Angeles Clippers Basketball franchise.  The Trust apparently has a provision common to nearly every revocable, living Trust that allows Mrs. Sterling to act as sole Trustee (meaning the sole Trust manager) if Donald Sterling is “incapacitated.”  Most Trusts provisions state that incapacity can be determined by the diagnosis of a single physician.  In Mr. Sterling’s case, he was evaluated by a neurologist who determined that he was suffering from mild cognitive impairment due to mild dementia (as reported in the media).  That was enough for the physician to declare Mr. Sterling incompetent to act as Co-Trustee.

If the physician’s diagnosis controls, then Mrs. Sterling, as sole Trustee, can sell the Clippers to whomever she likes.  If the physician’s diagnosis is refuted by a competing neurologist, then Mr. Sterling may still be able to act as Co-Trustee—and thereby block the Clippers sale.

It’s not everyday that a $2 billion transaction turns on a lowly Trust incapacity clause, but whether your estate is large or small, the issue is important to you.

So why have an incapacity clause in a Trust at all?  It is meant to prevent people from having to go to Court to declare a Trustee incapacitated.  And the only way to “safely” determine incapacity is to have a mental exam completed by a competent physician.  But that procedure has its problems and limitations—especially where the elder refuses to cooperate.  The problem with mild dementia is that people often won’t, or can’t, admit they have a problem.  That results in a dispute as to capacity.

The irony is that the Sterlings are now in Court over a provision designed to keep them out of court.

Expert Witnesses in California Trust and Will Lawsuits

Posted in Videos

Lack of capacity and undue influence don’t prove themselves in Court, you need an expert witness to do that.  Once you obtain medical records, you need a medical expert witness to review them and then give an opinion as to whether the decedent lacked capacity or was susceptible to undue influence at the time he or she signed a Will or Trust.  Medical records themselves are (1) inadmissible hearsay in most cases, and (2) confusing and hard to understand.  An expert witness cuts through both these problems to (hopefully) provide a clear, understandable opinion of the decedent’s mental condition.

For our email subscribers, please click on the title link to view this video.  Also, be sure to visit our website.

When Planning Fails: Casey Kasem’s Lessons For California Trusts and Wills

Posted in Estate Planning, Litigation, Planning

Casey Kasem’s passing is a sober reminder of how people with estate plans can still be subject to bitter Court disputes in their golden years.  Prior to Mr. Kasem’s death his wife and children (from a prior marriage) were involved in a bitter conservatorship dispute.  Mr. Kasem had apparently prepared a healthcare directive naming his daughter and her husband as agents to make health care decisions (according to news reports).  But Kasem’s wife

had other ideas.  She refused to allow Kasem’s daughter and husband to act.  When faced with the possible appointment of a conservator over Kasem, she fled the state and went to Washington state where the battle over Kasem continued.  Kasem’s passing ends the conservatorship dispute, but my guess is that there is an estate fight in the works.

Kasem’s plight prompts the question: what are family members to do when planning documents fail them?

Healthcare Directive Issues

In Kasem’s case, he had the right planning document in place—a healthcare directive—but it did him little good because his wife did not honor it, and the document cannot enforce itself.  Since Kasim’s wife had possession of him, she was able to circumvent his wishes as stated in the Healthcare Directive apparently.  So what good is a Healthcare Directive?

As with most planning, it is great to have and will work most of the time, but not all of the time.  When you have warring family members who do not get along and work at cross-purposes to each other, then a piece of paper is not going to help much.

The key, is working together with family members to develop a workable plan that works for everyone.  Easier said than done in some cases.  But still, even in tough family situations communication is key.

Having a clear plan on who will make decisions, what the future plans will be for financial management and caregiving (either at home or at a facility), and as much about future medical decisions, or philosophies, is all helpful information.  And the more that is written down, the better.  If nothing else, it will help a Court make a good decision if ever a Court has to get involved in your future care.  Don’t leave it up to chance, as chances are, you will be sadly disappointed by what occurs.

Convincing a Parent to Step Down as Sole Trustee

A similar problem is when a parent no longer has the ability to manage his or her financial affairs, but refuses to admit it.  How does a child step in as successor Trustee when a parent refuses to step aside?  While most Trust documents have a procedure to find a parent “incapacitated” to act, that procedure typically requires a note from one or two physicians—what if your parent refuses to go to the doctor, or refuses to have a mental exam done?

This is a tough problem with no good solution.  If you cannot convince a parent to either step down or see a physician for a mental exam, you have few good choices.

Of course, you can file to obtain a conservatorship over your parent, which would then establish (in a very forcible, expensive, and public way) that your parent no longer has capacity (that’s what happens in a conservatorship, before being awarded the Court must make a finding that the elder lacks mental capacity).  But that is not a good option, as it tends to make a mess of the entire situation (not to mention royally piss-off your parent—and you thought staying out past curfew was bad…).

Alternatively, I have had children act as a Co-Trustee as a means to provide help to a parent without pushing the parent aside altogether.  Co-Trustees work together to jointly manage the Trust estate and pay bills.  The Co-Trustee idea allows you to approach your parent and ask to help them in their role as Trustee, rather than replacing them in that role.  A parent can remain as Co-Trustee with you, and you can take the laboring oar in managing Trust assets and paying bills.  It can be a real win-win for everyone involved.  And it is much easier to talk to a parent about helping them—not replacing them.

Estate planning is not perfect.  There are challenges and issues that we must face.  There’s no doubt that planning is important to avoid being dragged into Court, and a majority of the time good planning will avoid a trip to the courthouse, but not always.



Proving Capacity and Undue Influence: How to Obtain Medical Records as Evidence in Your California Trust or Will Lawsuit

Posted in Videos

How do you prove lack of capacity or undue influence without the past medical records of the decedent?  Simply put, you don’t.  Without the medical records your Trust or Will lawsuit will be dead-on-arrival at trial.  In this video I discuss how to obtain the all-important medical records for your California Trust or Will lawsuit.

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